TITLE:  Great South Bay Marina, Inc., B-293649, May 3, 2004
BNUMBER:  B-293649
DATE:  May 3, 2004
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Great South Bay Marina, Inc., B-293649, May 3, 2004

   Decision
    
    
Matter of:   Great South Bay Marina, Inc.
    
File:            B-293649
    
Date:              May 3, 2004
    
Dominic S. Rizzo, Esq., for the protester.
Pete Raynor, Esq., National Park Service, for the agency.
Mary G. Curcio, Esq., and John M. Melody, Esq., Office of the General
Counsel, GAO, participated in the preparation of the decision.
DIGEST
    
Agency had a reasonable basis to cancel a concession contract prospectus
in order to reconsider its requirements, where it determined that stated
estimate of amount contractor would be required to commit to improvement
of government-owned facilities was inaccurate, and that recompeting the
requirement after revising estimate could increase competition.
DECISION
Great South Bay Marina, Inc. (GSBM) protests the decision by the National
Park Service (NPS) to cancel the prospectus seeking proposals for the
award of a concession contract at Fire Island National Seashore. GSBM
argues that the agency lacked a reasonable basis to cancel the prospectus.
    

   We deny the protest.
    
The prospectus contemplated the award of a 10-year concession contract to
provide, among other things, snack bar, maintenance, and restaurant
services.  The prospectus also required offerors to commit to invest
$3,016,000 in the Concessions Facilities Improvement Program (CFIP), which
would encompass substantial rehabilitation and reconstruction of
government-owned facilities on the island.  GSBM was the only offeror that
responded to the prospectus.  An evaluation panel reviewed the offer and
determined that it was unacceptable based on a finding, among other
things, that GSBM had estimated the cost of the CFIP at only $1,458,648,
and thus did not commit to invest $3 million as required.  The panel
recommended that NPS cancel the prospectus and review the estimate.  In
reviewing this recommendation, the Regional Director considered the fact
that, prior to the closing date for the prospectus, NPS had received
letters from two potential offerors complaining that the required CFIP
investment was too high.  The Director determined that, even if the GSBM
offer were found acceptable, it was in the public*s interest to cancel the
prospectus and reassess the CFIP investment requirements.
    
JURISDICTION
    
NPS argues, as a preliminary matter, that our Office lacks jurisdiction in
this matter because the prospectus involves a concession contract, and not
a solicitation for the procurement of property or services.  We disagree. 
Our authority to decide bid protests derives from the Competition in
Contracting Act of 1984 (CICA), 31 U.S.C. S:S: 3551-56 (2000), and
encompasses written objections by interested parties to *a solicitation or
other request by a federal agency for offers for a contract for the
procurement of property or services.*  Where the government invites
offerors to compete for a business opportunity such as a concession
contract, the performance of which also involves the delivery of goods or
services to the government, the value of which is not de minimis, the
contract is one for the procurement of property or services within the
meaning of CICA and, therefore, is encompassed within our Office*s bid
protest jurisdiction.  Shields and Dean Concessions, Inc., B-292901.2,
B‑292901.3, Feb. 23, 2004, 2004 CPD P: 42.  
    
Here, in addition to providing visitor services, the contractor is
required to provide substantial rehabilitation and construction services
to the government; indeed, as discussed, the cost of these services is the
focus of the protest.  These services are valued at more than $3 million
in the prospectus (and at about $1.5 million in the protester*s offer). 
We have found services valued at over $800,000 not to be de minimis for
purposes of establishing our jurisdiction over the award of a concession
contract, Shields and Dean Concessions, Inc., supra, and we see no reason
to reach a different conclusion with regard to the substantially
higher-valued construction services here.  Since the required construction
and rehabilitation are clearly not de minimis, this protest falls within
our jurisdiction. 
    
CANCELLATION
    
GSBM protests that, in canceling the prospectus, the agency improperly
relied on letters from other potential offerors instead of performing an
independent analysis of the prospectus to determine if it was flawed. 
GSBM notes that the agency earlier had advised GSBM that the prospectus
would not be canceled.
    
While CICA governs the manner in which most procurements are conducted, it
exempts those covered by *procurement procedures that are otherwise
expressly authorized by statute.*  41 U.S.C. S: 253 (a)(1).  The National
Park Service Concessions Management Improvement Act of 1998, 16 U.S.C.
S: 5951 et seq. (2000) (the 1998 Act) establishes such procedures for the
award of NPS concession contracts.  Starfleet Marine Transp., Inc.,
B-290181, July 5, 2002, 2002 CPD P: 113 at 10.  Where CICA and the
implementing Federal Acquisition Regulation (FAR) (see FAR S:S: 1.104,
2.101) do not apply, we review the record to determine if the agency*s
actions were reasonable and consistent with any statutes and regulations
that do apply.  Quick! The Printer, B-252646, July 20, 1993, 93-2 CPD P:
42 at 4.  The regulations implementing the 1998 Act set out the following
standard for canceling a prospectus:  *The Director may cancel a
solicitation at any time prior to award of the contract if he determines
in his discretion that this action is appropriate in the public
interest.*  36 C.F.R. S: 51.11 (2004).  Applying this standard, we find no
basis to object to the cancellation.

   As discussed, the evaluation panel recommended that the Director cancel
the prospectus because it appeared that the agency*s estimate was
significantly overstated and was impeding competition.  Considering this
recommendation, together with the two prospective offerors* objections to
the agency estimate as being too high to make the contract profitable
(neither submitted an offer), the Director determined that it was in the
public interest to cancel the prospectus and review the estimate with the
goal of achieving greater competition.  We see nothing improper in this
determination.  Although the protester complains about the agency*s
reliance on the letters, they clearly constituted evidence of the effect
of the CFIP estimate on the procurement; together with GSBM*s offer, which
priced the work at approximately half the agency*s estimate, the letters
reasonably indicated that the CFIP estimate was problematic, and may have
contributed to the receipt of only a single offer.  It follows that the
agency reasonably relied on this evidence in concluding that canceling,
reviewing and reissuing the prospectus could result in increased
competition.  The prospect of increased competition generally provides a
reasonable basis for an agency to cancel a solicitation.  See A-Tek,
B-286967, Mar. 22, 2001, 2001 CPD P: 57 at 3.  The fact that the agency at
one time indicated that the prospectus would not be canceled does not
establish that the cancellation was improper.
    
The protest is denied.
    
Anthony H. Gamboa
General Counsel